Estes Lumber Co. v. Investors' Syndicate, 6 Div. 873.

• Decision Date: 08 October 1931
• Docket Number: 6 Div. 873.
• Citation: 223 Ala. 408,137 So. 31
• Court: Alabama Supreme Court
• Parties: ESTES LUMBER CO. v. INVESTORS' SYNDICATE ET AL. ET AL.

137 So. 31

223 Ala. 408

ESTES LUMBER CO. v. INVESTORS' SYNDICATE ET AL. ET AL.

6 Div. 873.

Supreme Court of Alabama

October 8, 1931

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to enforce a materialman's lien by the Estes Lumber Company against S. M. Casey, Investors' Syndicate, and T. L Bond. From a decree denying a lien, complainant appeals.

Affirmed.

W Emmett Perry, of Birmingham, for appellant.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellees.

GARDNER J.

Appellant filed this bill against S. M. Casey, as owner of the property, and Investors' Syndicate, a corporation, holding a mortgage thereon, to enforce a materialman's lien and have its superiority declared over the mortgage of the Investors' Syndicate. Defendant Casey offered no defense, nor did one Bond, also made a party defendant. The Investors' Syndicate offered two defenses: First, that the suit was barred by the statute of limitations; and, second, that complainant was estopped to claim otherwise. Upon consideration of the cause for final decree on pleadings and proof, the chancellor awarded complainant a personal decree against Casey for the amount claimed due, but denied any relief as to the establishment of a lien on the house and lot, and from such decree complainant prosecutes this appeal.

The sum claimed by complainant is for a balance due for material furnished by complainant to Casey, the owner of the property, for the erection of the house. Complainant was an original contractor and the filing of a verified statement under section 8836, Code 1923, within six months of the accrual of the indebtedness, was within time. Gilbert v. Talladega Hardware Co., 195 Ala. 474, 70 So. 660; Morris v. Bessemer Lumber Co., 217 Ala. 441, 116 So. 528, Ingram v. Howard, 221 Ala. 328, 128 So. 893.

The lien is lost, however, unless suit for the enforcement thereof is commenced within six months after the maturity of the entire indebtedness secured thereby. Section 8855, Code 1923.

Defendant (to so designate the Investors' Syndicate) insists the indebtedness matured March 18, 1927. The bill was filed October 3, 1927, and, if the maturity date of March 18th is correct, the defense of the statute of limitations is established. The indebtedness was evidenced only by an open account. A complete itemized statement of the account was delivered by complainant to one Wightman, a lawyer, for collection, with full authority to take all necessary steps to that end, and, in so doing, Wightman was acting as complainant's agent. On July 22, 1927, Wightman filed in the probate office a statement of this account duly verified by his own affidavit, in which the amount claimed is fixed at $428.57, "with interest at eight per cent. from to-wit, 18th day of March, 1927." Such was the date of the last delivery of material. The bill filed in this cause likewise avers the amount due as $428.57, "with interest at eight per cent. from March 18, 1927." There is no averment as to the maturity of the indebtedness other than above indicated in the verified statement and the bill showing a claim of interest from March 18, 1927.

"Interest attaches as an incident to the debt or money demand, and begins to run after maturity, in the absence of a contrary stipulation in the instrument evidencing the debt." Scott v. Thomas, 211 Ala. 420, 100 So. 778, 779. "Unless there is an agreement to the contrary, interest attaches as an incident to a debt or money demand, *** from the time of its maturity or when payment is due or may be demanded." Zimmern v. Standard Motor Car Co., 205 Ala. 580, 88 So. 743, 747. See, also, 33 Corpus Juris, 230. As, therefore, interest attaches as an incident to the debt only from the time of its maturity, it must logically follow that one claiming interest on an open account from a given date intends to say and in effect does say that the debt matured on that date.

So considered, therefore, the bill avers, and likewise the verified statement in the probate office, that the debt matured March 18, 1927. And, indeed, the written evidence of the transaction adds corroboration to this fact, for the estimate of the material made...